The Urgency of a Senate Rule Change

Pundits, public figures and the politically-oriented have awakened to the fact that a Senate procedural rule is undermining democracy in Congress.

Only those who spend too much time with Roberts Rules of Order can follow the tortured route through which a principled respect for free and full debate led to a situation in which it takes agreement from 60% of the Senators to bring a bill to the floor, which in effect means that it takes a supermajority to pass all legislation, originating in the House or Senate.

Because of the compromise which gave states two senators regardless of their population, the notion has arisen that the Founders intended the Senate to be undemocratic. Nothing could be further from the truth.

Alexander Hamilton and James Madison repeatedly reaffirmed the importance of majority vote in the Federalist Papers. The Constitution itself specifies the three instances in which a two-thirds vote is required.

The public weighed in to make the Senate more democratic when it passed the 17th amendment requiring the direct election of senators in 1913. This replaced the earlier provision that the state legislatures would name them.

With great gusto, the Republicans have used the so-called "invisible filibuster" 84 times since Obama was elected president, more than the total of all filibusters in the Congresses of the 1950s and 1960s.

This abuse has aroused those paying attention, but changing Rule 22 which introduced the painless filibuster will be like pulling an elephant out of hat. Too many senators on both sides of the aisle consider Senate traditions as holy writ, even though they've changed this rule three times. Much is made of the bad legislation super majorities have blocked without considering the many good laws that never get passed -- or how the difficulty of law-making in America feeds into voters' frustration and alienation.

Still the opening of the 112th Congress presents an opportunity for course correction, and some Senators are actually talking up reform proposals.

More than 300 historians, political scientists, and law profs from colleges and universities throughout the country have signed a petition calling upon their Senators "to restore majority rule to the United States Senate by revising the rules that now require the concurrence of 60 members before legislation can be brought to the floor."

Stay tuned. We'll know on January 5th whether the reformers can bring enough colleagues along to redeem democratic rule in the United States.

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Dear colleague,

The sorry spectacle of one bill after another being defeated in the Senate despite having a majority of senators voting for it impels us to circulate this petition. We are asking our senators to change the rules that have empowered a minority of 41 senators and undermined the democratic principle of majority vote. An email message returned to appleby@history.ucla.edu will affirm your support, and your name, with affiliation, will be added to the petition which we intend to present to a group of senators when the new congress convenes in January.

Joyce Appleby, History, UCLA, retired
Katy Harriger, Political Science, Wake Forest University
Senator Gary Hart, University of Colorado, Denver
Sanford Levinson, University of Texas Law School
Lawrence Lessig, Harvard Law School
Peter Onuf, History, University of Virginia
Jack Rakove, History, Stanford University
David RePass, Political Science, University of Connecticut, retired
John K. White, Political Science, Catholic University

The Petition

We, the undersigned, American historians, political scientists, and legal scholars, call upon our senators to restore majority rule to the United States Senate by revising the rules that now require the concurrence of 60 members before legislation can be brought to the floor for debate and restoring majority vote for the passage of bills.